127 Mich. 490 | Mich. | 1901
Relator applied for a writ of mandamus to compel respondents to audit and allow certain claims for services rendered by him as sheriff of Wayne county during the years 1897 and 1898. The application was denied, and this is certiorari to review the decision of the circuit judge.
The claim for services consists of items:
2. For care and custody of prisoners, $2,500 a year.
3. For transferring prisoners to and from the recorder’s court.
4. For taking prisoners sentenced by the recorder’s court from the county jail to the house of correction.
5. For transferring prisoners to and from the circuit court, and for taking prisoners sentenced by the circuit court to the house of correction.
6. Turnkey fees,' not first commitments or final discharges, $2,158.
The answer of respondents in the court below showed that opportunity was given the relator to present his claims, and that relator had several hearings upon the questions of fact relative to the items in his bill, and that every showing was made by the relator to the respondents for which the relator made a request, and that the respondents passed upon the merits of the claims, both as a matter of fact and as a matter of law. The relator asked for issues to be framed on this return, and among the issues was No. 8:
“ Did said respondents give said relator a full and fair opportunity to prove before them the facts and circumstances in relation to the matters stated in said petition, and, if so, when, where, and under what circumstances ?”
The issue also presented the following questions:
“Did said respondents, in disallowing the claim of relator, mentioned in said petition, act upon their own judgment as to the equity and justice of said claim ? Or did said respondents therein rely upon the advice of the ‘ legal adviser of said board,’ mentioned in the answer of said respondents, on file in this cause ? ”
And, tenth:
“Did said respondents disallow said claim because said ‘adviser had given to said respondents an opinion that said claim of relator was without foundation in law,’ or such advice in substance and effect ? ”
It appears that no finding of facts was entered, the judge returning that he was not aware that such an order
We think the testimony fairly shows that the-claim of relator -was disallowed upon the advice of the prosecuting attorney, and that the merits of the claim were not considered. In other words, the reason for the disallowance, as appears by the record, was, not that the claim was in all respects deemed inequitable, but that the board had no power to audit or allow the claim. The letter in which they informed the relator of their action, after stating the advice of the prosecuting attorney, added, “We have no course to pursue except to follow his advice.” We think, under these circumstances, that, if there was any item in the claim which the respondents had the power to allow, they should have been required to consider and audit the claim. This involves some examination of the items of relator’s claim.
As to the first item, it is contended that, ks the relator was required to attend upon the court, under 1 Comp. Laws, § 430, even, in the absence of statutory fees being fixed, the respondents had the power to allow him reasonable compensation. Section 430, it should be stated, does not require the attendance of the sheriff, except as required by the circuit judge. There was some evidence from which it might be inferred that such attendance was required, and, if this should prove to be the fact, it was within the power of the board of auditors to allow him reasonable compensation for such services. Their action, when taken, it is true, would be final, and not reviewable by the court. See Mixer v. Board of Sup’rs of Manistee Co., 26 Mich. 422; Tucker v. Common Council of Grand Rapids, 104 Mich. 621 (62 N. W. 1013), and cases cited.
But it is insisted that the relator had the right to the allowance of this item as a matter of right. Act No. 77 of the Public Acts of 1895 fixes the compensation of sheriffs for attending upon the circuit court at $1.50 for each day, except in the counties of Kent and Wayne, and further
‘ ‘ An act to amend section eleven of chapter one hundred fifty of the Revised Statutes of eighteen hundred forty-six, relative to the fees of sheriffs in executing process issued out of the courts of law and equity, and by judicial and other officers, and for other services, as amended by the several acts amendatory thereof.”
It is urged that there is nothing in the title to indicate the purpose to take away, the sheriff’s compensation for attending court. But it should be observed that the compensation for that service was provided for in section 11 as it was originally enacted. This title indicates a purpose to amend the section, and the question really is whether the statement that the section, as it stood prior to amendment, was one “relative to the fees of sheriffs,” etc., was a misdescription. It is plain that it was not, and we think it follows that there is no statutory compensation fixed for the attendance of the sheriff upon the circuit court.
As to relator’s claim for the care and custody of prisoners in the jail during the years 1897 and 1898, the same considerations hold. There is no statutory compensation fixed. But the statute (3 Comp. Laws, § 12006, contained in the chapter relating to fees and costs in criminal cases) entitles the sheriff to compensation “for other services not herein specially provided for, such sums as may be allowed by the board of supervisors.” Whether, under the circumstances of this case, any allowance for such
As to the claim for conveying prisoners to and from the recorder’s court, we think, as matter of law, that relator was not entitled to this compensation, in view of section 5,75 of the charter of Detroit. The case of Allor v. Wayne County Auditors, 43 Mich. 76 (4 N. W. 492), is relied upon. But in that case the services were in the arrest of parties charged to have committed offenses outside the city of Detroit, and in the county of Wayne. It was said in the opinion:
‘ ‘ For the purposes of the present controversy, it is necessary, in order to avoid attributing to the legislature an intention very far beyond the title of the act, to hold that the section which gives exclusive power to the police force for the service of process ‘ in criminal cases within said city ’ does not refer to any cases where the crime was committed out of the city.”
It is true that the act in question does not in terms deny compensation to the sheriff; but it does deny compensation to deputy sheriffs, and the service in this case, if any, was performed by the deputies.
As to the charge for taking prisoners to and from the courts other than the recorder’s court, the right to these fees would seem to be clear under 3 Comp. Laws, § 12006. Compensation seems to have been denied on the authority of Starmont v. Cummins, 120 Mich. 629 (79 N. W. 897), on the ground that these services were rendered by deputies whose duties required their attendance upon the court. The case of Starmont v. Cummins simply holds that a deputy attending upon the court is not entitled to fees as a witness. But the attendance of the officer upon the court is quite a different thing from conveying prisoners to and from the jail.
The claim for turnkey fees other than first commitments or final discharges is ruled adversely to the relator in Lee v. Board of Supers of Ionia Co., 68 Mich. 330 (36 N. W. 83).